Santhamani vs S.N. Somasundram

Swamikannu, J.—This is a revision petition filed by the wife (Respondent in Original Petition No. 110 of 1976) alleging from the initial stage to this stage of revision that she had not received summons in this case of a petition that had been filed by her husband before the trial Court u/s 13 if the Hindu Marriage Act 1955 praying for divorce, on the ground of cadultery.

Mr. M.R. Narayanaswamy the leaned Counsel for the Petitioner submits that the signature found in exhibit C-1 the postal acknowledgement was contested as one not having been put by the Petitioner here in and as a matter of fact one V.D. Mahajan a hand writing expert had been asked to submit is report and that the said report which was in favour of the Petitioner was also submitted to the Court but for reasons best known to both sides the same had not been accepted in this case.

The Petitioner had examined herself as PW1 and on behalf of the Respondent one. Isaac the postman concerned with exhibit-C was examined as RW 2 and one R4 Govind asamy Pillai was examed as Rw 2 Exhibit A1 is the draft letter of exhibit B2 in the letter head of KP Muthuswami (SIC) and brothers filed on behalf of the Petitioner On behalf of the Respondent exhibits B-1 to B-4 were filed before the trial Court Exhibit C1 dated 12th May 1976 is the Postal acknowledgment in original Petition No. 110 of 1976 filed by the Respondent herein for divorc� as mentioned above.

Interlocutory Application No. 1334 of 1977 in Original Petitition No. 10 of 1976 as already mentioned was filed by the revision Petitioner herein under Order IX Rule 13 CPC Code before the trial Court to set aside the Expert Order passed agonist her in Original Petition No. 110 of 1976 on 9th July 1976 which Petition was filed as already mentioned u/s 13 of the Hindu Marriage Act 1955.

It is relevant in this connection to note that the above Original Petition No. 110 of 1976 was filed by the husband against his wife, the revision Petition herein, praying to pass a decree (SIC) the ground of adultery as mentioned above. Notice was Ordered in the said Petition by the learned Second Additional Subordinate Judge on 29th Aprill976 by 22nd June 1976. The Respondent, the revision Petitioner herein, according to the trial Court, was served by post, on 12Th May 1976. This is the docket entry of the trial Court dated 22nd June 1976. Thereafter, on 22nd June 1976 it is seen from the entries in the docket of the Petition, Respondent called, absent. Set expert. Evidence 26th June 1976. This entry was made on 22nd June 1976 by the learned Subordinate Judge. On 28th June 1976, the evidence of P.W. 1 was recorded, exhibit.A 1 and A 2 were marked, and for further evidence at the request of the learned Counsel for the Petitioner, it was adjourned to3rd July 1976. This endorsement is found as against the date 26th June 1976 in the docket entry. On 3rd July 1976, as the Petitioner was not ready, the Petition was adjourned to 9th July 1976. This also finds as an entry by the learned Second Additional Subordinate Judge as against the date 3rd July 1976. on 9th July 1976 P.W. 2 was examined, and it was mentioned in the docket entry that he claim was proved and that the Petition was allowed as prayed for with costs. This entry is found as against the date 9th July 1976 in the docket. It is needless to say that a separate Order had been written by the trial Court as against which, it is common ground, no appeal has been preferred. The said Order also does not contain any other matter than the docket entry that is incorporated there. We are not very much concerned about that Order, because it is only the judgment in Civil Miscellaneous Appeal No. 70 of 1979 of the learned District Judge who sat in appeal against the Order interlocutory Application No. 1024 of 1977 that is the subject of scrutiny under the provisions of Section 115 of the civil Procedure Code.

We are now concerned in this revision Petition with the question as to whether this Court could interfere by virtue of the power vested with it u/s 115 of CPC Code to revise the judgment of the learned District Judge or to uphold the stand that had been taken by means of the judgment in appeal made by the learned District Judge.

Mr. M.R. Narayanaswami, the learned Counsel for the Petitioner, attached the judgment of the lower appellate Court on the ground that it had not applied its mind in the proper perspective with respect to the question that loosed large before it, but had taken into consideration many extraneous matters which were not quite relevant and germane to the point at issue. In developing this argument, Mr. Mr. Narayanaswami has also gone deep into the pleadings. As a matter of fact, at one stage, his rhetoric contention was that the ratio decided imbedded in the decision of the Supreme Court in Bipin Chander Jaisinghbhai Shah Vs. Prabhawati, . with respect to standard of proof that is required with respect to animus deserendi was not taken into consideration at all by the lower appellate Court and when the decree is one which has the effect of completely severing the matrimonial lie between the spouses, the lower appellate Court ought to have applied its mind in dealing with the Order of the trial Court in appeal and viewed the matter in the proper perspective. In other words, Mr. M.R. Narayanaswami contends that as per the provisions of Section 13 of the Hindu Marriage Act, 1955, the proof contemplated itself shows the gravity of the question involved in a petition filed u/s 13 of the Hindu Marriages Act, 1955, and the failure to have all these before it in construing the matter under Order IX, Rule 13 Code of Civil Procedure, in the light of the provisions of Order V Rule 9 Code of Civil Procedure, clearly gives jurisdiction to this Court to interfere u/s 115, CPC and nullify the effect of the decision that had been rendered by way of judgment on appeal over the order that had been pronounced by the trial Court in Interlocutory Application No. 1334 of 1977. In this regard, Mr. M.R. Narayanaswami has also taken me through the contents of exhibit C. 1. His main point of attack with respect to this document is that when the signature said to have been put by P.W. 1 in it had been stoutly denied by her in her evidence and when there is an expert opinion available in the records, though not exhibited as evidence, is it not the duty of the trial Court to have exercised its jurisdiction u/s 165 of the Indian Evidence Act, 1872, and get itself enlightened so as to decide the question relating to the aspect of setting aside the ex parte decree that had been pronounced by it. This question thus emanates as a point or law cannot be brushed aside so lightly as one which is without substance, especially when there is an attack on the signature found in exhibit C-1 emanating from the Petitioner, who is alleged to be the author of the same. It is common ground that the opinion expressed by the handwriting expert which of course formed part of the testimony here as a material by way of evidence available on record, has not been exhibited. The opinion of the handwriting expert was to the effect that the signature found in exhibit C-1 is not the one put by the person, who signed the subsequent signatures which were the subject. matter of scrutiny by him. The rhetoric contention that had been pressed into service by Mr. M.R. Narayanaswami is that the failure to take into consideration the said report thus submitted before the Court by a competent expert relating to hand writing ought to have been the subject-matter of action or proceeding by the Court itself by putting relevant questions to the relevant witnesses, who were available, and the failure to exercise suck a jurisdiction vested with it both u/s 165 of the Indian Evidence Act, 1872, as well as sue moto especially when the opinion of the expert is available before Court and there is a categorical assertion on the part of P.W. 1 that the signature found in exhibit C.1 is not her signature, requires this Court to interfere with the judgment which is subject matter of this revision, viz., the one pronounced on appeal by the learned District Judge. This Court had perused both the judgment under revision as well as the order that has been responsible for the examination of the Civil Miscellaneous Appeal. before the lower appellate Court.

The point for consideration is, whether the failure to take into consideration the expert opinion offered by the handwriting expert which is available on record, of course not as evidence, but one that had come into existence during the course of the proceedings, in that it came into existence subsequent to the filing of the Petition at the instance of the Petitioner herein, requires the Court itself to take into consideration the genuineness or otherwise of the plea that emanating from P.W. I. regarding her signature found in exhibit C-I, especially when exhibit C-I is a Court document.

Mr S. Gopalaratnam, the learned Counsel for the Respondent vehemently contends that the argument advanced on behalf of the Petitioner herein cannot be upheld by this Court in view of the fact that it is for the Petitioner herein to prove that the signature found in exhibit C.I. is not her signature, and it is not for the Court to suo motu indulge in an enquiry which is extraneous to the point at issue. In other words he submits that the jurisdiction contemplated u/s 165 of the Indian Evidence Act 1872, cannot be said to have been in any way attracted in the present case Mr. S. Gopalaratam also referred to the decision of this Court rendered by venkataraman, J. in Appeal Against Order No. 178 of 1971 (Kotha Chelliah v. Alwariah Chety and Sons).

Mr. M.R Narayanaswami, the learned Counsel for the Petitioner, referred to the decision of this Court (suryamurthy J.) in Nataraja Iyer Vs. Nacharammal, . Both these decisions were with respect Order 5 Rule 9, Clause (2) of the CPC (service, of summons by post). It is submitted by (Mr. S. Gopalaratnam that the view taken by venkataraman 1. has to be upheld by this Court and that the view taken by suryamurthy, J., is not applicable to the facts of this case, because the said decision emanated on the basis of facts which are distinguishable from the facts in the present case . Mr. S Gopalaratnam also referred to the decision in Anaithalayam v. Mardudamuthu, (1953) 1 M.L.J. 302. for the proposition that the failure to take an acknowledgment or to affix the summons as contemplated under Order V Rule 17 or CPC is cured by the proviso to Order IX, Rule 13, Code of Civil Procedure. enacted in Madras through the provisions of Order V Rule 17 may be mandatory.

11 Order IX, Rule 13 of the CPC as amended by the Madras High Court, reads as follows:

(1) In any case in which a decree is passed expert against a defended. He may apply to the Court by which the decree was passed for an Order to set it aside, and if he satisfies the Court, that the ummoss was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an Order jetting aside the decree as against him upon such terms as to costs. payment into Court or otherwise as it thinks fit and shall appoint a day for proceeding with the suit.

Provided that where the decreed is of such a nature that it cannot be set aside as against such Defendant only it may be set aside as against all or any of the other Defendants also.

Provided further that no Court shall set aside a decree passed expert merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the Defendant had notice of the date of hearing and had sufficient time to appear and answer the Plaintiff''s claim.

(2) The provisions of Section 5 of the Indian Limitation Act, 1908, shall apply to applications under Sub-Rule (1).

Explanation: Where there has been an appeal against a decree passed expert under this Rule and the appeal has been disposed of on any ground other than the ground that the Appellant has withdrawn the appeal no application shall lie under this Rule for setting aside that ex-pate decree.

Order V Rule 9 of the CPC reds as follows:

(1) Where the Defendant resides in India. whether within or without the jurisdiction of the Court in which the suit is instituted, the Court may direct the proper officer to cause summons under this Order to be addressed to the Defendant at the place, where he ordinarily resides or carries out business or works for gain, and sent to him by registered post prepaid for acknowledgment.

(2) Where the summons is returned (SIC)served or the Defendant does not appear or the day fixed in the summons, the Court may direct the summons�s shall be delivered or sort to the proper officer to be served by him or ore of his subordinate or the Defendant.

(3) The proper officer may be an officer of a Court other than that in which the suit is in situated and where he is such an officer the summons may be sent to him by post or in such other manner as the Court may direct.

(4) Notwith standing anything contained in Sub-Rule (1) where proceedings in Court are taken for:

(i) Issue of an injunction; or

(ii) punishment of a party for contempt of Court, or

(iii) bringing to sale any property in execution of a decree or Order of Courts, notices shall be served only in the manner provided for in Sub-Clause (2)

In the instant case, as already mentioned, we are not concerned with the issue involved in the Petition and as the case had been disposed of expert, we need not go into the averments made in the Petition or the contentions raised in the counter. What we are now concerned is, whether the ingredients in Order IX, Rule 13, CPC have been satisfied so as to set aside the expert decree that had been passed by the trial Court. Viewing the entire submissions that have emanated from either side as well as the record available by way of evidence now before this Court, this Court comes to the conclusion that the judgment under revision requires treatment u/s 115 of the CPC favorable to the Petitioner viz., the wife (Respondent in the Original Petition.) When the wife, the revision Petitioner herein, has specifically averted and also went into the box as P.W. 21 and deposed to the effect that the signature found in exhibit C-I is not her signature, however much there might have been evidence let in by the other side or there was a flagrant failure on the part of the Petitioner (P.W. 1) to examine her father, who was not available in the very precincts of the Court, it does not in any way afford as a ground for the failure of the trial Court to exercise its jurisdiction u/s 165 of the Indian Evidence Act, 1872 and put some questions and to get the report of the handwriting expert exhibited as a Court exhibit and proceed in the matter and arrive at a decision. This is what exactly is contemplated by the procedural law of the land in conjunction with the basis principles of the law of evidence, viz. the Indian Evidence Act, 1872. If this is not a case to be dealt with u/s 165 of the Indian Evidence Act. what else can be the case to be dealt with by means of interrogations The Court has got the power to probe into the matter, of course, well within its jurisdiction and come to a conclusion independent of the extraneous circumstances that may come and indulge in wheeling the actual state of affairs. This is what is expected of by the provisions of the CPC as due process of law. In the instant case it is a gross failure to exercise the jurisdiction vested with the trial Court, in that, the trial Court has failed to make use of the provisions u/s 165 if the Indian Evidence Act, and further enlighten itself irrespective of the fact whether evidence was made available by either side or not, in Order to get at the truth with respect to the entire aromu that had been created due to the existence of a signature which is alleged to be not the Petitioner''s signature.

Mr. S. Gopalaratnam, the learned Counsel for the Respondent, finally submitted that for sending the summons it is not the Respondent herein, viz., the hus and, who is responsible, but it is the Court and its office which sends summons through post, and as such, there cannot be any sigma attached to the proceeding which had been actually initiated at the instance of an officer of the Court, vlz., the Nazir''s Section, or any other officer who is responsible for posting the same. In other words, he submits that the evidence of the postman as R.W. 1 is sufficient to dispel any doubt relating to the signature in exhibit C-1, because the specific evidence emanating from R.W. 1 is to the effect that the signature was put in his presence by P.W. 1, and that in token of the same another person�s signature was also obtained in it. who is that another person There is certainly a vacuum around the signature that is found in exhibit C-1, Is it a male or female who is he? Why no question had been put u/s 165 of the Indian Evidence Act by the trial Court to R.W. 1 with respect to this, can the Court simply keep quiet on what has emanated and discuses about the same later on in its judgment Certainly not. The provision u/s 165 of the Indian Evidence Act had been incorporated for the purpose of enabling the Court to get enlightened then and there with respect to any reasonable doubt that is created in its judicial mind. As a matter of fact, a reading of Section 165 of the Indian Evidence Act, 1872, clearly shows that not only relevant but even irrelevant questions can be asked, provided that the question emanates at the spur of the moment from the Court so as to get itself enlightened, because there is nothing like enlightenment in a case by way of evidence recorded at the instance of the Court itself when the Court finds it difficult to get at the crux of the matter, especially when both sides are unable to help it. Therefore, when this strong weapon with which the Court is armed u/s 165 of the Indian Evidence Act, 1872, is not utilized for proper purposes under the critical circumstances, certainly it amounts to failure to exercise the jurisdiction vested with a Court which requires interference by this Court

The next point that is urged by Mr. S. Gopalaratnam, the learned Counsel for the Respondent is that the certified copy of the experts report was available with the revision Petitioner herein on 25th November, 1978 itself, there is absolutely no explanation offered by the revision Petitioner herein as to way she bad kept quiet 12th January 1979, the day on which she had been examined as P.W. 1. I am unable to final any substance in this argument, because the document is not before this Court now at this stage as a piece of evidence. The fact remains that it forms part of the material record. Motion is made in this Order, not by way of appreciating any evidence or contents therein but as a fact of the existence of the same in the record of this case. Under the circumstances, the contention in this regard is rejected as untenable.

I have absolutely no ground to disbelieve the evidence of P.W. 1, who is the wife and whose absence in this original Petition had been Ordered setting her expert and disrupting her sacramental union with the Respondent. Nothing has been brought to my notice even at this stage by the learned Counsel for the Respondent as to why the evidence of P.W. 1 should not be believed. The evidence available on record both oral and documentary, clearly shows that her Petition ought to have been allowed by the lower Courts by believing her evidence. Bat both the Courts below have missed the salient features of the prayer that had been emailing from the wife (the revision Petitioner) and have proceeded to discuss something which is absolutely not germane to the point As already stated, no convincing reason had been given by both the Courts below for rejecting the evidence of P.W. 1 when she has specifically stated that summons had not been received by her. Her evidence had not been properly put to test for disbelieving the same This makes this Court to allow the Petition in toto and set aside the Order refusing the prayer for setting aside the expert decree in the Original Petition. Under these circumstances, the revision Petition is allowed. There will be no order as to costs.